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Smt. Parvinder Kaur W/O Late Vijai Pal Singh And Ors. Versus Board Of Revenue U.P. Lucknow And Ors.

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Smt. Parvinder Kaur W/O Late Vijai Pal Singh And Ors. Versus Board Of Revenue U.P. Lucknow And Ors. [WRIT – B No. – 1003602 of 2010]

Judgment

1. Heard Shri Shamshad Ali learned counsel for petitioners, Sri N.K. Seth, learned Senior Advocate assisted by Sri Ashish Chaturvedi advocate for respondent no. 6-auction purchaser and learned Standing Counsel for the State.

2. Petitioners, heirs of late Vijay Pal Singh (one of the five brothers), by the present writ petition have challenged the order dated 31.05.2010 passed by respondent no.1 Board of Revenue, U.P., Lucknow and further prayed for a mandamus commanding the respondent no.6-auction purchaser not to create any hindrance in the peaceful possession of the petitioners over the property in dispute.

3. It appears that at the very initial stage, the Court was not satisfied with regard to possession of the petitioners and, thus, on 15.06.2010 the interim order passed provided only that, “opposite party no.6 shall not alienate the property in question till the next date of listing.” Even during the course of arguments no claim was made by the petitioners that they are in possession of the property in dispute.

4. Before coming to the facts it would be appropriate to narrate the long and checkered litigation parties went through to again reach this court by the present writ petition. The property in dispute, bearing Khasra No.295, 297, 272-A, 272-B, measuring 15 Biswa situated in Village Behsa, Tehsil and District-Lucknow, was auctioned to clear the electricity dues of the partnership firm M/s Walia Industries, setup in the year 1981, which had installed a factory for manufacturing of Saria on the same. The factory suffered losses and was ultimately closed. The recovery proceedings were initiated by UPPCL for its electricity dues against M/s Walia Industries by a recovery citation dated 17.01.2001. Admittedly, the said dues were recoverable as arrears of land revenue under the U.P. Zamindari Abolition and Land Reforms Act, 1950 (UP. Z.A. & L.R. Act). In the said recovery proceedings the property in dispute was attached and thereafter auctioned on 2.12.2002 and after confirmation of sale auction purchaser also got possession and his name mutated in records. On 23.10.2003 all the five brothers filed the sale objections under Rule 285-I of U.P. Zamindari Abolition and Land Reforms Rules, 1952 (U.P. Z.A. & L.R. Rules).

The said objections were heard and rejected on the point of limitation vide order dated 29.10.2003 by the learned Additional Commissioner, holding that the same were filed beyond a period of thirty days of auction, as provided by Rule 285-I. Being aggrieved, objectors preferred a revision before the Board of Revenue, which, by its order dated 18.08.2005, allowed the revision and quashed the entire auction proceedings. Aggrieved from the said order auction purchaser preferred a Writ Petition No.5464 (M/S) of 2005 (Revenue) before the high court. The writ petition was allowed by judgment and order dated 22.08.2007 and the order dated 18.08.2005 passed by the Board of Revenue was set aside, as without deciding the issue of limitation the Board of Revenue had wrongly proceeded to decide the revision on merits. The matter was remanded back to the Board of Revenue. The Board of Revenue again heard the matter and condoned the delay in filing of objections by its order-dated 12.02.2008 and remanded the matter back to the Commissioner for hearing the objections on merits.

Auction purchaser filed a Writ Petition No.1196 (M/S) of 2008 against the said order dated 12.02.2008 of the Board of Revenue but a stay order was granted only on 21.08.2008 and communicated to the Additional Commissioner on 02.09.2008. The Additional Commissioner (Judicial), Lucknow however by its judgment and order dated 03.09.2008 allowed the objections on merits and set aside the auction proceedings. The said Writ Petition No.1196 (M/S) of 2008 of the auction purchaser also came to be heard and the Court dismissed the same as infructuous vide order dated 10.02.2009, with liberty to auction purchaser to raise all his issues in his revision before the Board of Revenue. The Revision No.1093 (Sale) of 2010 filed by the auction purchaser is allowed by order-dated 31.05.2010 by the Board of Revenue and that is now under challenge before this court.

5. The counsel for the petitioners submits that Late Surjeet Singh purchased the property in dispute in the year 1975 and after his death all five of his sons, including Sri Vijay Pal Singh and Sri Sarabjeet Singh inherited the said property. He claims that in the year 1981 Sri Vijay Pal Singh and Sri Sarabjeet Singh (also noted as Sarvjeet Singh in some records) had formed a partnership firm and installed a factory for manufacturing of Saria on the same. Since, after death of late Surjeet Singh all his five sons inherited the property in dispute, the same could not be sold in the auction for dues of the firm and its two promoter brothers. He further submits that property in dispute was sold on a low price without affecting proper notice on all the heirs of late Surjeet Singh and that the Board of Revenue has wrongly allowed the revision and rejected the objections of the petitioners.

6. Opposing the petition Sri N.K. Seth, learned Senior Advocate for respondent no.6-auction purchaser submits that the facts as submitted by the counsel for the petitioners are incorrect. It is only the two brothers namely Vijay Pal Singh and Sarabjeet Singh and their firm M/s Walia Industries that owned the property in dispute. Later the said two brothers also left the Firm and got new partners introduced and, thus, the present petition filed only on behalf of heirs of Late Vijay Pal Singh, is not maintainable, as the said other brothers have not approached this Court. He next submits that the objections filed by the petitioners under Rule 285-I of the U.P. Z.A. & L.R. Rules are barred by limitation and the delay in filing the objections cannot be condoned. He further submits that there is otherwise also no illegality in the auction sale and also there is no force in the objections to the auction sale and thus the petition should be dismissed.

7. I have heard counsels for the parties and learned Standing Counsel at length and perused the record. The questions raised by the parties for consideration of this court thus are:-

(i) Whether the objections of the petitioners to the auction sale are barred by limitation or the commissioner/any superior court has power to condone the delay in filing the objections;

(ii) Ownership of property in dispute and maintainability of present writ petition on behalf of petitioners; containing within issues whether all five brothers or only two, namely Sarabjeet Singh and Vijay Pal Singh, inherited the property in dispute and whether the said two sons also in view of later developments have any concern with the property in dispute and whether the objections or present writ petition is maintainable on their behalf,

(iii) If the above two are decided in favor of the petitioners, whether there is any force in the objections to the auction filed by the petitioners.

(i) Limitation and power to condone the delay

8. Counsel for the auction purchaser submits that admittedly the auction sale was held on 2.12.2002 and objections under Rule 285-I of U.P. Z.A. & L.R. Rules were filed on 23.10.2003, i.e., after ten months and twenty-one days. Rule 285-I provides a period of thirty days only for filing the objections and thus the objections filed after the said period are barred by time, which could not be condoned by the commissioner. He places reliance upon two single judge judgments of this court, namely, Abdul Wahid v. Additional Commissioner (admin.) Meerut Division and Others; 1989 AWC 1056; and Prabhu Dayal and others v. Board of Revenue and others 2012 SCC Online All 473. Opposing the same learned counsel for the petitioners submits that the case of Abdul Wahid was decided relying upon the judgment in case of Indu Engineering and Textiles Ltd. Nawalganj, Agra v. Commissioner Agra Division, Agra & Others; 1984 AWC 772, which itself was decided upon the law as it existed prior to 1979 amendment to the revenue manual and is therefore no more a good law. Similarly Prabhu Dayal case has nothing to do with recovery proceedings and is thus not applicable. He further submits that the commissioner had power to condone the delay under Section 5 of the Limitation Act, 1963 and the Board of Revenue had earlier rightly condoned the delay.

9. Initially there was a dispute as to whether the objections filed under Rule 285-I are judicial or administrative proceedings. The said question was referred to a full bench of this court and the full bench in ”Ram Swaroop vs. Board of Revenue and others, 1990 LCD (8) 253′, noting the amendments made to Paragraph 911 of the Revenue Manual in the year 1979, declared the same to be judicial proceedings and held Commissioner to be a revenue court while deciding them. The full bench further observed, “there is no dispute that Limitation Act will apply before any court of law.” However, question still remains as to the extent to which section 5 or any other provision of the Limitation Act can be invoked to condone the delay in filing objections under Rule 285-I. The said question arises in view of Section 29(2) of the Limitation Act, 1963 which provides:-

“Section 29(2). Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in section 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.” (emphasis added)

10. The scope of application of Section 29(2) of the Limitation Act including what would be a special act and when applicability of section 4 to 24 of the Limitation Act would be barred is considered at length by the Supreme Court in ”Kaushalya Rani Vs. Gopal Singh; AIR 1964 SC 260′. In the said case the issue before the court was the applicability of Section 29(2) of the Limitation Act with regard to amended Section 417 of the Code of Criminal Procedure, 1973 (Cr.P.C.). Section 417(3) of Cr.P.C. provided an opportunity to complainant also, with the leave of High Court, to file appeal against an order of acquittal. Section 417 (4) of Cr.P.C. provided that no application for grant of leave to appeal under sub-section (3) shall be entertained by the High Court after the expiry of sixty days from the order of acquittal. The Supreme Court in paragraph 6 and 7 held:-

“(6) It will appear that the section, which was recast by Act XXVI of 1955, for the first time made provision for an appeal by a private complainant from an order of acquittal, if he obtained special leave to appeal from the High Court. Previous to the Amending Act aforesaid, it was only the State Government which could come up in appeal from an order of acquittal. The section, thus, provides for an appeal by the State Government, as also by the complainant in a case instituted upon a complaint, provided that special leave of the Court is obtained. So far as appeal by the State Government is concerned, S. 417 itself does not provide for any period of limitation. The period of limitation for such an appeal is laid down in Art. 157 of the Limitation Act. Previous to the amendment of 1955, the period of limitation for such an appeal by the State Government was six months, which was reduced to three months by the Act XXVI of 1955 with effect from January 1, 1956. Hence, so far as an appeal by the State Government is concerned, the period of limitation thus reduced is a part of the general law of limitation and is amenable to the operation of S. 5 of the Limitation Act. But the provisions of sub-sec. (3) and (4) of S. 417 are in the nature of ‘special provisions’ introduced for the first time by the Amending Act XXVI of 1955. Sub-section (4), in terms, is very precise and mandatory, prohibiting the High Court from entertaining any application for special leave to appeal from an order of acquittal after the expiry of 60 days from the date of such an order. On a perusal of the bare provisions of the section and the history of the law on the subject, two things are clear; namely, (1) that the legislature thought it expedient in the interest of justice and public policy that the period of six months allowed to the State Government to appeal from an order of acquittal should be curtailed by half, thus evincing its clear intention to cut short the duration of the litigation which had already resulted in an order of acquittal; and (2) that in certain cases the High Court should have the power of granting special leave to a complainant, as distinguished from the State Government, to come up in appeal from an order of acquittal, but at the same time indicating in clear and unambiguous terms that such an application must be made within 60 days from the date of the order of acquittal. This rule of 60 days bar of time has been specifically provided for in the section itself, unlike the general rule of limitation applicable to an appeal against acquittal, at the instance of the State Government. In our opinion, therefore, the position is clear that so far as appeal by the State Government is concerned, the law of limitation is the general law laid down in the Limitation Act (Art. 157) to which S. 5 would apply by its own force. But in so far as an appeal by a private prosecutor is concerned, the legislature was astute to specifically lay down that the foundation for such an appeal should be laid within 60 days from the date of the order of acquittal. In that sense, this rule of 60 days bar is a special law, that is to say, a rule of limitation which is specially provided for in the Code itself, which does not ordinarily provide for a period of limitation for appeals or applications. It is the general law of limitation, as laid down in the Limitation Act, which governs appeals ordinarily preferable under the Code, vide Arts. 150, 154, 155 and 157. To such appeals the provisions of S. 5 would apply.

(7). It has been observed in some of the cases decided by the High Courts that the Code is not a special or a local law within the meaning of S. 29(2) of the Limitation Act, that is to say, so far as the entire Code is concerned because it is a general law laying down procedure, generally, for the trial of criminal cases. But the specific question with which we are here concerned is whether the provision contained in S. 417(4) of the Code is a special law. The whole Code is indeed a general law regulating the procedure in criminal trials generally, but it may contain provisions specifying a bar of time for particular class of cases which are of a special character. For example, a Land Revenue Code may be a general law regulating the relationship between the revenue-payer and the revenue-receiver or the rent-payer and the rent-receiver. It is a general law in the sense that it lays down the general rule governing such relationship, but it may contain special provisions relating to bar of time, in specified cases different from the general law of limitation. Such a law will be a ‘special law’ with reference to the law generally governing the subject-matter of that kind of relationship. A ‘special law’, therefore, means a law enacted for special cases, in special circumstances, in contradistinction to the general rules of the law laid down, as applicable generally to all cases with which the general law deals. In that sense, the Code is a general law regulating the procedure for the trial of criminal cases, generally; but if it lays down any bar of time in respect of special cases in special circumstances like those contemplated by S. 417 (3) & (4), read together, it will be special law contained within the general law. As the Limitation Act has not defined ‘special law’, it is neither necessary nor expedient to attempt a definition. Thus, the Limitation Act is a general law laying down the general rules of limitation applicable to all cases dealt with by the Act; but there may be instances of a special law of limitation laid down in other statutes, though not dealing generally with the law of limitation. For example, rules framed under Defence of India Act, vide Surya Mohan v. State of Bihar ILR 30 Pat 126: (AIR 1951 Pat 462); Canara Bank Ltd. v. The Warden Insurance Co. [ILR (1952) Bom 1083]: (AIR 1953 Bom 35) dealing with the special rule of limitation laid down in the Bombay Land Requisition Act (Bom. XXXIII of 1948). These are mere instances of special laws within the meaning of S. 29(2) of the Limitation Act. Once it is held that the special rule of limitation laid down in sub-sec. (4) of S. 417 of the Code is a ‘special law’ of limitation, governing appeals by private prosecutors, there is no difficulty in coming to the conclusion that S. 5 of the Limitation Act is wholly out of the way, in view of S. 29(2)(b) of the Limitation Act.”(emphasis added)

Similarly in ”Hukum Dev Narain Yadav v Lalit Narain Mishra; AIR 1974 SC 480′, the court in paragraphs – 17, 18 and 25 held that:-

“17. Though Section 29(2) of the Limitation Act has been made applicable to appeals both under the Act as well as under the Criminal Procedure Code, no case has been brought to our notice where Section 29(2) has been made applicable to an election petition filed under Section 81 of the Act by virtue of which either Section 4, 5 or 12 of the Limitation Act has been attracted. Even assuming that where a period of limitation has not been fixed for election petitions in the Schedule to the Limitation Act which is different from that fixed under Section 81 of the Act, Section 29(2) would be attracted, and what we have to determine is whether the provisions of this section are expressly excluded in the case of an election petition. It is contended before us that the words “expressly excluded” would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. As usual the meaning given in the Dictionary has been relied upon, but what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. The provisions of Section 3 of the Limitation Act that a suit instituted, appeal preferred and application made after the prescribed period shall be dismissed are provided for in Section 86 of the Act which gives a peremptory command that the High Court shall dismiss an election petition which does not comply with the provisions of Ss. 81, 82 or 117. It will be seen that S. 81 is not the only section mentioned in Section 86, and if the Limitation Act were to apply to an election petition under S. 81 it should equally apply to Ss. 82 and 117 because under Section 86 the High Court cannot say that by an application of Section 5 of the Limitation Act, Section 81 is complied with while no such benefit is available in dismissing an application for non-compliance with the provisions of Section 82 and 117 of the Act, or alternatively if the provisions of the Limitation Act do not apply to Section 82 and Section 117 of the Act, it cannot be said that they apply to S. 81. Again, S. 6 of the Limitation Act which provides for the extension of the period of limitation till after the disability in the case of a person who is either a minor or insane or an idiot is inapplicable to an election petition. Similarly, Ss. 7 to 24 are in terms inapplicable to the proceedings under the Act, particularly in respect of the filling of election petitions and their trial.

18. It was sought to be contended that only those provisions of the Limitation Act which are applicable to the nature of the proceedings under the Act, unless expressly excluded, would be attracted. But this is not what S. 29(2) of the Limitation Act says, because it provides that Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. If none of them are excluded, all of them would become applicable. Whether those sections are applicable is not determined by the terms of those sections, but by their applicability or inapplicability to the proceedings under the special or local law. A person who is a minor or is insane or is an idiot cannot file an election petition to challenge an election, nor is there any provision in the Act for legal representation of an election petitioner or respondent in that petition who dies, in order to make Section 16 of the Limitation Act applicable.

25. For all these reasons we have come to the conclusion that the provisions of Section 5 of the Limitation Act do not govern the filing of election petitions or their trial and, in this view, it is unnecessary to consider whether there are any merits in the application for condonation of delay.”(emphasis added)

In ”Union of India vs. Popular Construction Co. (2001) 8 SCC 470′ the issue before the court was “whether the provisions of Section 5 of the Limitation Act, 1963 are applicable to an application challenging the award filed under Section 34 of the Arbitration and Conciliation Act, 1996”. The Supreme Court again held:

“12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are ‘but not thereafter’ used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase ‘but not thereafter’ wholly otiose. No principle of interpretation would justify such a result.

13. Apart from the language, ‘express exclusion’ may follow from the scheme and object of the special or local law. “Even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation.” (SCC p.146, para 17) (emphasis added)

11. In the present case, Section 341 of U.P. Z.A. & L.R. Act applies the Limitation Act to the proceedings held under it, but, Section 344 (1)(a) and (f) provides for framing of rules for imposing time limit, with or without power to extend such time limit imposed, and applicability of different sections of the Limitation Act to proceedings under it. Section 344 (1)(a) and (f) read:-

“344. Rules in general. – (1) Every power to make rules given by this Act shall be deemed to include the powers to provide for-

(a) imposing limits of time within which things to be done for the purposes of the rules must be done, with or without powers to any authority therein specified to extend limits imposed;

(f) the application of the provisions of the Indian Limitation Act, 1908 (X of 1908) to suits applications, appeals and proceedings under this Act;”

12. Rule 285(H) of UP. Z.A. & L.R. Rules provides that owner of property put to auction can by depositing the entire amount and expenses as provided in the said rule, with in a period of thirty days from the date of sale, can get the sale set aside. But, any person who files his objections under rule 285-I of the said Rules cannot move an application under rule 285-H. In the present case objections are filed under rule 285-I only. Rules 285(I) to 285(M) of U.P. Z.A. & L.R. Rules relevant for our purpose read:-

“285-I. (i) At any time within thirty days from the date of the sale, application may be made to the Commissioner to set aside the sale on the ground of some material irregularity or mistake in publishing or conducting it; but no sale shall be set aside on such ground unless the applicant proves to the satisfaction of the Commissioner that he has sustained substantial injury by reason of such irregularity or mistake.

(ii) [* * *]

(iii) The order of the Commissioner passed under this rule shall be final.

285-J. On the expiration of thirty days from the date of the sale if no such application as is mentioned in Rule 285-H or Rule 285-I, has been made or if such application has been made and rejected by the Collector or the Commissioner, the Collector shall pass an order confirming the sale after satisfying himself that the purchase of land in question by the bidder would not be in contravention of the provisions of Section 154. Even order passed under this rule shall be final.

285-K. If no application under Rule 285-I is made within the time allowed therefor, all claims on the ground of irregularity or mistake in publishing or conducting the sale shall be barred:

Provided that nothing contained in this rule shall bar the institution of a suit in the Civil Court for the purpose of setting aside a sale on the ground of fraud.

285-L. Whenever the sale of any holding or other immovable property is set aside under Rule 285-H or Rule 285-I the purchaser shall be entitled to receive back his purchase money plus an amount not exceeding five per cent of the purchase money as the Collector or the Commissioner, as the case may be, may determine.

285-M. (i) After a sale of holding or other immovable property under the Act, has been confirmed in the manner aforesaid, the Collector shall put the person declared to be purchaser into possession of such property, and shall grant him a certificate to the effect that he has purchased the property to which the certificate refers and such certificate shall be deemed to be a valid transfer of such property, but need not be registered as a conveyance except as provided by Section 89 of the Registration Act, 1908.

(ii) The certificate shall state the name of the person declared at the time of sale to be the actual purchaser and any suit brought or application made in a Civil or Revenue Court against the certified purchaser on the ground that the purchase was made on behalf of another person not the certified purchaser, though by agreement the name of the certified purchaser was used shall be dismissed with costs.” (emphasis added)

13. A perusal of the provisions of U.P. Z.A. & L.R. Act and the Rules framed thereunder shows that the same provide a complete procedure for the complete manner of recovery, including, holding of auction sale, objections to sale and disposal of such objections including consequences of not filing the objections. Thus, the said Act and Rules fall within the category of special local Act under section 29(2) of the Limitation Act for the purpose of recovery proceedings held under the same. Schedule to the Limitation Act by entry 127 provides limitation of sixty days for filing an application to set aside a sale in execution of a decree. By entry 137 it provides limitation of three years for any other application for which no period of limitation is provided elsewhere. While Rule 285-I only provides a period of thirty days for filing objections against auction sale. Thus the special act not only provides the period of limitation for filing objections to the auction sale separately, the period of limitation provided by the special act is also different from that provided by the Limitation Act. Further, Rule 285-I provides that objections to the sale can be filed within a period of thirty days from the date of sale before the commissioner, only on grounds of irregularity or mistake in publishing or conducting the sale. If the objections are not filed under Rule 285-I within thirty days from the date of sale, under Rule 285-J the collector is bound to confirm the sale and such an order of confirmation of sale shall be final. Rule 285-K makes the position further clear by providing that thereafter all claims on ground of irregularity or mistake in publishing or conducting the sale shall be barred and only remedy available is to file a suit on ground of fraud. From the aforesaid, it is clear that U.P. Z.A. & L.R. Act and Rules, for the purposes of recovery of sums recoverable as arrears of land revenue, is a complete code in itself, which specifically excludes the applicability of Sections 4 to 24 of the Limitation Act.

14. In the present case admittedly auction took place on 02.12.2002 and the objections under Rule 285-I were filed on 23.10.2003, i.e. after ten months and twenty-one days of the auction. Any such objections were to be filed within thirty days from the date of auction. The collector meanwhile, since no objections were filed within thirty days, confirmed the sale on 07.01.2003. As per Rule 285-K only remedy available to any person after thirty days of auction sale is to file a suit on ground of fraud. The objections under Rule 285-I could not be filed and entertained after thirty days and any delay in filing objections cannot be condoned. Such an interpretation flows from the plain language of the sections and rules aforesaid. It also appears to be appropriate to bring finality to the auction proceedings. Therefore the delay in filing objections could not be condoned either by the commissioner or by any superior court. The objections filed beyond the period of thirty days from the auction sale are held as barred by time and not maintainable.

(ii) Ownership of property in dispute and Maintainability of present writ petition on behalf of petitioners

15. The submission of the counsel for the petitioners is that the property in dispute belonged to late Surjeet Singh and after his death all his five sons inherited the same. Thus, the same could not be sold for the dues of a partnership firm of which only two brothers were partners, as the same would amount to auction of shares of the other three brothers who had no concern with the partnership firm. Opposing the same counsel for auction purchaser submits that all the sons of late Surjeet Singh never became owners of the property in dispute. He submits that by a registered will dated 05.01.1989 late Surjeet Singh bequeathed the same to his two sons, namely, Vijay Pal Singh and Sarabjeet Singh. Further, from the partnership deeds executed from time to time it is clear that not only the other three sons of late Surjeet Singh never had any concern with the property in dispute but later even Vijay Pal Singh and Sarabjeet Singh had no concern as they also resigned from the partnership firm. No objections are filed against auction either by the partnership firm or the persons who were partners of the firm at the time of auction and they never disputed the auction.

16. Before coming to the merit of submissions, relevant is to note, that, though the objections under Rule 285-I were filed by all the five brothers but the present writ filed is filed only by the heirs of late Vijay Pal Singh, who was one of the the initial two partners of the firm. It is admitted before this court that the predecessor of the petitioners, late Vijay Pal Singh was a partner of the firm and was liable of the dues. Thus, once the other three brothers, who were never partners of the firm, are now not claiming any right in the property and not challenging the order of Board of Revenue before this Court, which has upheld the auction sale, it is not open for the liable petitioner to make any such claim. This ground, that, share of persons having no concern with the liability is wrongly sold, can only be taken by a person who makes any claim to the property while denying liability. The same cannot be taken by heirs of an admittedly liable partner.

17. Now coming to the merits of the claim that the other three brothers had shares in the property. With the assistance of parties I have perused the record. In the registered will dated 05.01.1989 late Surjeet Singh states that his wife has expired and thereafter details the circumstances of the family and of all his five sons. In his will late Surjeet Singh names the other three sons, and states, that, two of them are in government jobs and the third son is running his independent electricity goods shop and all of them are well settled in life. He states that his son Vijay Pal Singh is already partner with him in Walia Industries, which is running the Saria mill on the property in dispute. He is not worried about these three sons, but, for his youngest son Sarabjeet Singh, who is working with him in Walia Industries as his name is not entered in the records. Hence he is writing the will to settle that after his death name of his son Sarabjeet Singh should be entered in records and Sarabjeet Singh will inherit his entire half share of Saria Mill. It further states that he desires that finally both his sons Vijay Pal and Sarabjeet Singh should have half share each in the entire Saria Mill. He further notes that in his lifetime only he shall try to get the name of Sarabjeet Singh entered in the records and, even by such change in records, Vijay Pal Singh and Sarabjeet Singh each would only get equal half share in the mill, so that a balance is retained. Since other three sons are well settled, hence, they will not get any right or share in the said Saria mill. Thereafter he details about his other properties and its succession. Thus the said will finally settled that his two sons namely Vijay Pal Singh and Sarabjeet Singh inherited the entire Saria mill in equal share and other three sons had no concern with the same. The petitioners or other brothers concealed the said registered will while filing objections under Rule 285-I and knowingly took an entirely contrary stand. The will is also not disputed before this court by the petitioners. As already noted above also, the other three brothers have not come before this court to challenge the order of the Board of Revenue by which their objections are rejected and the auction is upheld. There is also no other document brought on record that any other brother ever claimed any right over the property in dispute. Therefore I do not find any force in the submission of the counsel for the petitioners that all the five sons inherited the property in dispute after the death of their father. It is only Vijay Pal Singh and Sarabjeet Singh who inherited the same.

18. With regard to the right of petitioners to maintain the present petition as legal heirs of a partner of the firm, submission of counsel for auction purchaser is that the property was auctioned to clear the liabilities of the electricity department against M/s Walia Industries, a Partnership Firm. Sri Surjeet Singh and Sri Vijay Pal Singh (Father and son) as two partners had initially setup the said firm, as is clear from the will dated 05.01.1989. A fresh partnership was created in the year 1989 only whereby second son Sri Sarabjeet Singh was also included as third partner. On 03.02.1993 Sri Surjeet Singh (father) expired and thus another partnership deed dated 16.02.1993 was entered into between the Sri Vijay Pal Singh and Sri Sarabjeet Singh. Later Sri Sarabjeet Singh expressed his inability to continue with the partnership and certain new partners were to be inducted. Thus another partnership deed was executed on 30.9.1995 by which Sarabjeet Singh retired from the Partnership and Arvind Kumar Tripathi and Mrs. Mrinalini Tripathi (wife of Arvind Kumar Tripathi) joined as new partners along with Vijay Pal Singh. Again by a deed of ratification dated 01.07.1996 Sri Vijay Pal Singh also expressing his inability to continue with the partnership business and retired from the firm w.e.f. 30.06.1995. Thus, only Arvind Kumar Tripathi and Mrs. Mrinalini Tripathi were left as partners of the said business. These facts were also recorded and reflect in the records of Excise and Income Tax departments. He submits that all these records i.e. registered will, partnership and retirement deeds etc. were concealed by the petitioners from the court while setting up and contesting their objections in courts. He further submits that petitioners have no where set up a case that the firm never owned the property in dispute or the property was not transferred along with the firm to the new partners. The objections were filed and entire proceedings were contested only by concealing the entire relevant documents from the courts and not by explaining them. Even before this court the said documents are not disputed.

19. The record shows that the auction purchaser along with his counter affidavit dated 02.08.2010 filed the said registered will and other documents are filed along with his supplementary counter affidavit dated 22.01.2018 (filed on 27.01.2018). Petitioners filed a rejoinder affidavit dated 23.12.2011 (filed on 04.01.2012) to the counter affidavit but in the same they have not disputed the registered will. Petitioners did not file any reply to the supplementary counter affidavit dated 22.01.2018 and thus did not dispute the record with regard to changes of partners in the partnership firm from time to time and record of different departments noting the said changes. The different partnership deeds and retirement deeds do note the changes in partnership as claimed by the counsel for the auction purchaser. The income tax order dated 05.02.1997 of the assessment year 1995-96 of the firm M/s Walia industries notes:-

“The assesse firm was constituted by two partners namely S/Shri V.P. Singh and Sarvjeet Singh. Presently, both the partners have retired and entirely new partnership is running the business. The books of a/c available with the present owners were produced and examined. It was stressed that the factory remained closed for considerable period during the previous year and hence the loss. In view of difficult situation and the fact that the aggregate losses ultimately forced both the partners to leave the business.”

20. Similarly Central Excise Registration Certificate was also corrected and retirement of Sarabjeet Singh and Vijay Pal Singh and addition of Arvind Kumar Tripathi and Mrs. Mrinalini Tripathi was duly noted in the same. Counsel for the petitioners merely states that the said partnership deeds are not registered. However the said fact will not make them illegal. He does not dispute the deeds and the fact that they have been acted upon and consequential changes/effects were made in Excise and Income Tax departments. From the above this court finds that the other three sons of late Surjeet Singh had no concern with the property in dispute and the same was inherited only by Vijay Pal Singh and Sarabjeet Singh and even they retired from the partnership firm in the year 1995 and 1996 respectively and had no concern with the firm M/s Walia Industries or its properties thereafter. Thus they had no right to file objections against the auction sale held on 02.12.2002.

(iii) Whether there is any force in the objections to the auction filed by the petitioners.

21. This Court has found that the very objections filed under Section 285-I were barred by limitation and delay could not be condoned and has further found that predecessor of petitioners had no concern with the property in dispute at the time of auction. Therefore the petitioners also do not have any right to maintain the said objections and thus the present writ petition. In the given circumstances, since the objections are not maintainable, the merits of the same cannot be looked into.

22. In view of the aforesaid there is no force in the present writ petition and the same is dismissed.

23. Before closing this judgment, this court strongly deprecates the manner of concealment of facts made, both in the objections filed under Rule 285-I and in the writ petition, and would like to caution the petitioners to approach any court with clean hands and narrate the correct and complete facts. The court is not imposing any costs for concealment of facts as the predecessor of the petitioners filed the objections and petitioners are widow and children, some being minor at the time of filing of this petition.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer at the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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